Citation Nr: 1517431 Decision Date: 04/23/15 Archive Date: 05/04/15 DOCKET NO. 12-26 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a heart disability, claimed as a heart murmur. 3. Entitlement to service connection for arthritis. 4. Entitlement to service connection for a bilateral eye disability. 5. Entitlement to a total disability rating based on individual unemployability. 6. Entitlement to nonservice-connected pension benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.C. Chapman INTRODUCTION The Veteran served on active duty from September 1996 to September 2000. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his September 2012 substantive appeal, the Veteran requested a Board hearing, but subsequently withdrew this request. See February 2015 correspondence. The issue of service connection for athlete's foot has been raised by the record in an August 2012 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The issue of entitlement to nonservice-connected pension is REMANDED to the AOJ. VA will notify the appellant if further action on his part is required. FINDINGS OF FACT 1. A back disability was not manifested in service or for many years thereafter, and is not shown to be otherwise related to his service. 2. A heart disability was not manifested in service or for many years thereafter, and is not shown to be otherwise related to his service. 3. Arthritis was not manifested in service or for many years thereafter, and is not shown to be otherwise related to his service. 4. The Veteran's diagnosed myopia is a refractive error that is not a compensable disability; superimposed eye pathology is not shown. 5. The Veteran's only service-connected disability, tinnitus, rated 10 percent, is not shown to be of such severity as to preclude his participation in any substantially gainful employment. CONCLUSIONS OF LAW 1. Service connection for a back disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2014). 2. Service connection for a heart disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2014). 3. Service connection for arthritis is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). 4. Service connection for a bilateral eye disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (c), 4.9 (2014). 5. The schedular requirements for TDIU are not met, and a TDIU rating is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. Appropriate notice was provided in correspondence dated in March 2009, June 2009, and October 2009. The Veteran's service treatment records (STRs) and pertinent postservice medical records are associated with the record. The Veteran was afforded a VA examination to assess his back in August 2009. The Board finds the report of this examination adequate for rating purposes. The examination was conducted specifically to determine whether the Veteran has a back disability and the examiner made all findings needed to address the matter at hand. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The RO did not arrange for a VA examination or secure a medical opinion with respect to the claims for a heart disability, arthritis, or a bilateral eye disability. The Board has considered whether an examination is necessary. Absent any competent (medical) evidence suggesting that the Veteran has a current heart disability, arthritis, or a bilateral eye disability related to his service, an examination to secure a medical nexus opinion in these matters is not necessary, as even the low standard endorsed by the U.S. Court of Appeals for Veterans Claims in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4). The Board finds that the record is adequate to decide the issues of service connection for a back disability, a heart disability, arthritis, a bilateral eye disability, and TDIU, and that no further development of the evidentiary record is necessary. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: A current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time (one year for arthritis) following discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2009). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows or fails to show as to the claims. Back Disability, Heart Disability, Arthritis The Veteran contends that he has a back disability, a heart murmur, and arthritis over his whole body as a result of his service. With regard to the heart claim, the Veteran acknowledges that there is no heart condition noted in service, but claims that this could be because there was no EKG or other test performed to determine if he had a heart condition. The Veteran's STRs show that in August 1999, he had a lesion on his lower back. In March 1997, June 1998, and June 2000, the Veteran denied having (or a history of) a heart murmur and arthritis. June 2009 private treatment records note back and joint pain. A June 2009 lumbar spine X-ray shows decreased lumbar joint space and a June 2009 chest X-ray shows diffuse osteoarthritic changes. A June 2009 echocardiogram shows mild mitral and tricuspid regurgitation. On August 2009 VA examination, thoracolumbar strain was diagnosed. Lumbar spine X-rays showed a normal lumbar spine. It is not in dispute that the Veteran currently has thoracolumbar strain, as such has been shown on VA examination. There is no evidence of a heart murmur; though, the evidence does show mild mitral and tricuspid regurgitation during the pendency of this appeal. The evidence also shows diffuse osteoarthritic changes during this appeal. However, even considering the Veteran has current back, heart, and arthritis diagnoses, such are not shown to be manifest during service or for many years thereafter. STRs are silent for any complaints, treatment, or diagnosis related to the back, heart, and/or arthritis. Notably, on three separation occasions, the Veteran denied having (or a history of) a heart murmur and arthritis. He has also acknowledged that he did not have a heart condition in service. See November 2009 statement. The only evidence indicating that the Veteran's back, heart, and arthritis disabilities manifested in service consists of his own accounts which began in 2009, approximately 9 years after his discharge from service. In essence, he asserts that he developed such disabilities in service and has had continuing problems since. In this regard, as noted above, the Veteran's STRs contain no mention of injury or disability related to the back, heart, or joints. Further, the Veteran specifically denied having a heart murmur or arthritis on several occasions in service. The first evidence showing a back disability, a heart disability, and/or arthritis was not until 2009, approximately nine years after his discharge from service. Considering this contemporaneous evidence, the Board finds that the Veteran's accounts of developing such disabilities in service which continued thereafter are not credible, as they are directly contradicted by the contemporaneous evidence. Hence, service connection for a back disability, a heart disability, and arthritis on the basis that such became manifest in service (or in the first postservice year) and persisted is not warranted. What remains for consideration is whether the Veteran's current back disability, heart disability, and arthritis may somehow otherwise be related to his service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428 (2011), determining the etiology of a back disability, a heart disability, and/or arthritis, is a medical question and requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran himself asserts he suffers from such disabilities as a result of service, or that the onset was due to an incident in service, the Board does not question the Veteran's sincerity of his beliefs. However, the Veteran is a layperson and there is no probative medical evidence of record which supports his theory that such disabilities are related to service. There is no probative evidence that shows or suggests that the Veteran's current thoracolumbar strain, mitral regurgitation, and/or osteoarthritis may be related to his service. Without any competent evidence of a nexus between these disabilities and his service, the preponderance of the evidence is against his claims of service connection. Bilateral Eye Disability The Veteran contends that he has a bilateral eye disability due to wearing minimally protective eyewear while performing X-rays on aircraft equipment in service. He also contends that he has an eye disability due to exposure to ionizing radiation. The Veteran's STRs show that on entrance to service he was wearing eye glasses due to myopia. An October 2008 private treatment record notes an eyewear prescription. In April 2009, the Veteran requested compensation for blurred vision. A June 2009 private treatment record notes that the Veteran wears glasses. Following review of the record, the Board notes that the Veteran was found to have myopia (a refractive error) on service induction, during service, and following service. Refractive error is a congenital or developmental abnormality that is not a disease or injury within the meaning of applicable regulation [i.e., not a compensable disability]. 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted for disability due to aggravation of a congenital abnormality from superimposed disease or injury in service. See Carpenter v. Brown, 8 Vet. App. 240 (1995); Monroe v. Brown, 4 Vet. App. 513 (1993). VA's General Counsel has held that service connection may be granted for diseases of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. The VA General Counsel also has held that a congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). See also 38 C.F.R. § 3.303(c). In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9; VA Manual M21-1MR, Part III, Subpart iv, Chapter 4, Section B. 10d. There is no indication in the record that the Veteran has any superimposed eye pathology. None was noted in service, nor has the Veteran alleged any eye disability other than blurred vision/vision loss. Accordingly, as the Veteran is not shown to have a compensable eye disability, service connection for an eye disability is not warranted. TDIU The Veteran generally alleges that he is unable to maintain substantially gainful employment. On his July 2009 TDIU application, the Veteran indicates that labor jobs may be painful due to arthritis in response to the question of what service-connected disability prevents him from securing or following any substantially gainful occupation. The Veteran reported that he last worked full-time in 2006 but did not respond to the question of when he became too disabled to work. He reported that he completed high school and two years of college. On July 2009 VA audiological examination, the Veteran reported recurrent, intermittent tinnitus in both ears. The examiner noted that this tinnitus would have no effect on the Veteran's usual occupation or daily activity. In November 2009, the Veteran stated that "the nature of positions in employment for which I have tended to work, which are the ones that have been the most available for those with my education level and experience, have been difficult for me to keep up with due to the conditions listed: dyschromic dermatitis, bilateral knee strain, bilateral ankle strain, thoracolumbar strain, and tinnitus. See November 2009 statement. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). For a Veteran to prevail on a total rating claim, the record must reflect some factor which takes the claimant's case outside the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. . . . The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, supra at 363; 38 U.S.C.A. § 4.16(a). The Veteran's sole service-connected disability is tinnitus, rated 10 percent. Accordingly, the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are not met. The analysis progresses to consideration of 38 C.F.R. § 4.16(b), and a determination as to whether referral for extraschedular consideration is warranted, i.e., the Board must determine whether the Veteran is unemployable due to his service-connected disability regardless of its rating. 38 C.F.R. § 4.16(b) provides that it is established VA policy that "all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled." However, in these cases, in order for the Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some circumstance which places the claimant in a different position from other Veterans with the same rating. Here, the disability picture presented by the Veteran's tinnitus is not such that it places him outside of the normal, warranting referral for consideration of an extraschedular rating. Notably, the Veteran has not alleged that his tinnitus alone precludes him from maintaining substantially gainful employment. On his TDIU application, he did not mention his tinnitus, and instead appeared to claim that his arthritis, for which he is not service-connected, is the disability affecting his employment. Moreover, on July 2009 VA examination, the examiner specifically found that the Veteran's tinnitus would not affect the Veteran's usual occupation. Consequently, referral of this matter for consideration of an extraschedular TDIU rating is not warranted. The preponderance of the evidence is against this claim. Therefore, the appeal in the matter must be denied. ORDER Service connection for a back disability is denied. Service connection for a heart disability is denied. Service connection for arthritis is denied. Service connection for a bilateral eye disability is denied. A TDIU rating is denied. REMAND A claim for nonservice-connected pension purposes is determined based on the total impairment caused by all nonservice-connected disabilities not the result of the Veteran's willful misconduct. See 38 U.S.C.A. §§ 1502, 1521(a); 38 C.F.R. §§ 3.321(b)(2), 3.340, 3.342(a), 4.17; Roberts v. Derwinski, 2 Vet. App. 387, 390 (1992). In the September 2009 and January 2010 rating decisions, the RO assessed the Veteran's nonservice-connected bilateral knee, bilateral ankle, and skin disabilities at 10 percent each for a combined 50 percent rating. These ratings were based on findings from a VA examination conducted in August 2009. In November 2009, the Veteran reported that his conditions, including dermatitis, bilateral knee strain, bilateral ankle strain, thoracolumbar strain, and tinnitus impact his ability to maintain substantially gainful employment. In light of the Veteran's contentions and the length of the intervening period since the Veteran was last examined to assess these disabilities, the Board finds that a VA general medical examination is necessary to properly assess the current severity of his nonservice-connected disabilities and to determine whether the Veteran is entitled to a permanent and total disability rating for nonservice-connected pension purposes due to his nonservice-connected disabilities that he claims prevents him from sustaining gainful employment. Additionally, payment of pension benefits is subject to income limitation requirements. See 38 C.F.R. §§ 3.3(a)(3)(v), 3.23. Payments of these pension benefits are made at a specified annual maximum rate, reduced on a dollar-for-dollar basis by annualized countable income. 38 U.S.C.A. § 1503; 38 C.F.R §§ 3.3, 3.23. In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments) shall be included except for listed exclusions. See 38 U.S.C.A. § 1503; 38 C.F.R. §§ 3.271, 3.272. In March 2009 correspondence, the Veteran was asked to provide his income information. He has not done so. As this is a basic requirement for establishing entitlement to pension, another attempt should be made to obtain this information from the Veteran. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he provide a detailed summary of his current household income and expenses. Send him an "Improved Pension Eligibility Verification Report" for the purpose of providing this information. 2. Obtain any relevant outstanding treatment records related to the disabilities the Veteran claims impact his ability to maintain substantially gainful employment. 3. After associating all additional records with the record, schedule the Veteran for the appropriate VA examination for pension purposes to assist in determining the nature and current severity of any nonservice-connected disability, to include his knees, ankles, and skin disabilities. All efforts made to schedule the examination should be documented and incorporated with the record. The claims file must be made available to the examiner(s) for review, and the examination report should reflect that such review has been accomplished. All appropriate testing should be conducted and all pertinent diagnoses rendered. The examiner should also request an occupational and social history from the Veteran. An explanation for each conclusion must be provided. 4. Then, readjudicate the Veteran's claim for nonservice-connected pension benefits. If the benefit sought remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs